State and Crown Lands Can't Be Reverted

March 8, 2018, 7:47 a.m.

Crown Grants and State Land acquired from Native land prior to 2013 won’t be reverted to customary owners, as changes in the law cannot be made retrospectively.

The definitions of Crown Grants and State Land and their reversion to their original landowners was highlighted in Parliament this week, with Attorney General (AG) Aiyaz Sayed-Khaiyum emphasizing that these titles were a consequent of the Deed of Cession signed by various chiefs in 1874, though the 2013 Constitution does mandate the return of Native land no longer used for public purposes by the State to the land’s customary owners.

He was responding to Opposition Member of Parliament (MP) Semesa Karavaki, who asked about the definition of Crown Grant and State Land under existing laws and how they could be reverted to its original owners.

“When Sitiveni Rabuka carried out the first two coups in 1987, the head of the State, who was the Queen, was removed and unilaterally declared a republic. Therefore, there was a decree that was passed in 1989 to amend Crown to State because we could no longer could hold the Crown as the head of the State so therefore it became State land,” the Attorney-General noted.

“Therefore, the definition was changed from Crown Grant to State Grant. State Grants - as defined by the Land Transfer Act- is any grant of land by the State, so when the State actually grants the land to somebody. The effect of a State Grant is that the State Grant gives the land to somebody who then holds the title for fee simple, or Freehold title.”

Citing the Crown Lands Act, he reiterated provisions that allows the relevant Minister to sell portions of State land and execute under the Public Seal of Fiji grants in fee simple, after Cabinet consultations.

“So, far example, when the SDL Government converted the Momi land from I Taukei (Native) land to Crown, then it was given as a conversion to become Freehold. Because only the Crown could do that in those days and now obviously only the State can only do that.

“Because it became from I Taukei to State land, then they could actually transfer that land in fee simple, meaning it became completely Freehold and therefore they hold the land perpetuity. That’s what it actually means.”

He added that the 2013 Constitution overrode any other written laws and requires the return of all I Taukei land to customary owners when no longer used for public purpose by the State.

Karavaki said this was discriminatory because the provision only began in 2013. He asked about the reversion of Native land acquired by the State prior to this.

“There were many, many more that were acquired for public purpose as opposed to after 2013,” the Opposition MP stated.

Sayed-Khaiyum cited Clause 4 of Fiji’s Deed of Cession, which gave the British Crown and Europeans absolute proprietorship of all lands not alienated or occupied by chiefs or tribes, nor required for the probable future.

“That was signed by the chiefs- only one was from the Western division, all the others were from the Eastern and the Southern divisions. Consequently, it became Crown land or State land.”

The case of Suva chief, Ratu Epeli Kanakana- whose claim of the entire Suva Peninsula was dismissed by the Court in 2010, was also noted, with the Attorney-General stressing that all of the country’s Constitutions- including those made in 1970, 1990 and 1997- similarly disallowed the reversion of such lands.

“Because the reality is that many of these lands actually have been given out as bogus etc. People have a right to know about the consistency of the Titles and this is why any responsible law-maker cannot retrospectively allow for changes in the law because people put confidence in the law at the point of time they made the transaction.

“So, going into the future, today 91 per cent of all land in Fiji is I Taukei land. If for example, the Government acquires some land for public purposes, the Government must give back that land to the I Taukei landowners or the particular landowning unit, should they no longer require it for that purpose.”

Karavaki asked about whether the Government could consider leasing such lands instead of their acquisition as State land, however the Attorney-General stated that tenure security makes it necessary for the State to have complete control of the land for the period in which it is used for public purposes.

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